Tuesday, August 26, 2014

Facebook firing causes unfair labor practice double play for NLRB

In Triple Play Sports Bar & Grille [pdf], the NLRB unanimously concluded that an employer unlawfully fired two employees for their off-duty Facebooking, and less-than unanimously concluded that the same employer’s social media policy was unlawfully restrictive.

A former Triple Play employee, Jamie LaFrance, posted the following on her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money … Wtf!!!!

Two then-current employees, Spinella and Sanzone, interacted with that post. Spinella clicked the “Like” button under the comment. In response to another’s comment to the same post, Sanzone commented, “I owe too. Such an asshole.”

The Board concluded that Triple Play unlawfully fired Spinella and Sanzone for their Facebook activities:

Spinella’s and Sanzone’s comments were not “so disloyal … as to lose the Act’s protection.” … The comments at issue did not even mention the Respondent’s products or services, much less disparage them. Where, as here, the purpose of employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation, the communications are protected.

The NLRB then examined the employer’s Internet/Blogging Policy, which stated:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.

The Board concluded that a vagueness and lack of specificity doomed the policy:

Here, we believe that employees would reasonably interpret the Respondent’s rule as proscribing any discussions about their terms and conditions of employment deemed “inappropriate” by the Respondent. The rule contains only one other prohibition—against revealing confidential information—and provides no illustrative examples to employees of what the Respondent considers to be inappropriate. Under these circumstances, we find the term “inappropriate” to be “sufficiently imprecise” that employees would reasonably understand it to encompass “discussions and interactions protected by Section 7.” …

The two unlawful discharges served as an indication to employees that the clause did not shield Sanzone’s and Spinella’s protected activity. Faced with these discharges, employees therefore would reasonably construe the Internet/Blogging policy to prohibit Section 7 activity such as the Facebook discussion of tax withholding issues involved in this case.

What can employers learn from this decision:

  1. Even the simple act of clicking the “Like” button can be enough to constitute protected concerted activity.

  2. The line beyond which an employee must cross to cost themselves the protections of the NLRA is far down the path of online speech.

  3. For any social media policy to pass muster under the NLRA, you should provide specific examples of the prohibited speech. Generalizations will likely cause you problems with the NLRB.

  4. The surest way to end up the NLRB’s crosshairs for an unlawful social media policy is to fire an employee for a violation of that policy. Absent a termination, it is unlikely the Board will ever find out about your policy.

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